IN THE CASE OF:	  

		BOARD DATE:	  24 September 2008

		DOCKET NUMBER:  AR20080011907 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that he be awarded the Purple Heart and that he be issued a new DD Form 214 (Certificate of Release or Discharge from Active Duty) with the award of the Purple Heart added.

2.  The applicant states, in effect, that he was wounded in combat during Operation Iraqi Freedom and should have been awarded the Purple Heart. 

3.  The applicant provides a copy of his DD Form 214, a copy of his Department of Veterans Affairs (VA) Rating Decisions, and copies of his medical treatment and consultation sheets.  

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the Oregon Army National Guard (ORARNG) on 29 March 1999 for a period of 8 years.  The applicant was appointed as a field artillery second lieutenant (2LT), effective 13 June 2003.

3.  On 16 October 2003, he was ordered to active duty in support of Operation Iraqi Freedom.  He deployed to Iraq on 26 March 2004 and was awarded the Combat Action Badge (CAB) for engaging or being engaged with the enemy on 8 April 2004.  He was awarded the Bronze Star Medal (BSM) on 27 December 2004 for meritorious service during the period from 4 April to 14 October 2004.  

4.  On 14 February 2005, the applicant’s vehicle sustained an explosion from an improvised explosive device (IED) and the applicant sustained an injury to the right knee and a concussion.  He was initially treated at the scene by a corpsman and the following day was treated at the theater medical treatment facility for trauma.

5.  He departed Iraq on 17 March 2005 and was transferred to Fort Lewis, Washington.  He received follow-up treatment at Madigan Army Medical Center for his injuries and on 31 March 2005, he was honorably released from active duty (REFRAD) and was returned to the ORARNG.  He was promoted to the rank of first lieutenant on 1 September 2005.     

6.  On 26 October 2005, the VA increased his evaluation for headaches from 10% disabling to 30% disabling.  On 2 May 2006, the VA increased his disability to 50% disabling. 

7.  On 11 October 2006, the applicant was issued a DD Form 215 to correct his DD Form 214 dated 31 March 2005.  However, his award of the BSM was not included on that change. 

8.  On 21 November 2007, the applicant tendered his resignation as an officer of the ORARNG and the United States Army Reserve to be effective 30 December 2007.  He stated that because of the injury he sustained due to an IED explosion, he had been under the care of the VA and had been in an inactive status for over 1 1/2 years, with no sign of future release into regular drilling status.  After much consideration, he realized that recovery is of the utmost priority and he needed to focus all of his attention and strength in that area.  His chain of command supported his request and on 8 February 2008, he was honorably discharged.

9.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for a wound sustained while in action against an enemy or as a result of hostile action.  Substantiating evidence must be provided 
to verify that the wound was the result of hostile action, the wound must have required treatment by medical personnel, and the medical treatment must have been made a matter of official record.  

10.  Army Regulation 635-5 serves as the authority for the preparation and distribution of the DD Form 214.  It provides, in pertinent part, once a DD Form 214 has been issued, do not reissue except when it is determined that the original DD Form 214 cannot be properly corrected by issuance of a DD Form 215 or if the correction would require issuance of more than two DD Forms 215.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he is entitled to a Purple Heart for injuries sustained as a result of enemy action in Iraq on 14 February 2005 has been noted and appears to have merit.   

2.  The applicant sustained a concussion and trauma to his right knee when his vehicle sustained an IED explosion.  The applicant was treated on the scene and in a medical treatment facility the next morning.

3.  Accordingly, it would be in the interest of justice to award him the Purple Heart at this time.

4.  Additionally, the applicant’s award of the BSM should also be added to his records as well.  
 
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ____X___  ____X___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by 
awarding him the Purple Heart for injuries received as a result of enemy actions in Iraq on 14 February 2005, while serving in the rank of 2LT and by adding his already-awarded BSM to his records as well. 

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to issuing the applicant a new DD Form 214.

3.  The Board wants the applicant and all others to know that the sacrifices he made in service to the United States during the Global War on Terrorism are deeply appreciated.  The applicant and all Americans should be justifiably proud of his service in arms.


 												___________X___________
       	     CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080011907



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ABCMR Record of Proceedings (cont)                                         AR20080011907



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